COURT FILE NO.: CR-16-15008088

DATE: 20191126

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

HARRIS HAIDARY

Defendant

John Flaherty and Tara Cassidy, for the Crown

Selwyn Baboolal, for the Defendant

HEARD: October 28-November 1, 2019 at Toronto

Michael G. Quigley J.

Reasons for Judgment

Introduction

1Harris Haidary is charged with having sexually assaulted S.S. Mr. Haidary denies having sexually assaulted Ms. S. and pleaded not guilty.

2The complainant and the accused both testified on this trial, as did three other witnesses for the Crown. They were (i) Sanjeev Yogeswaran, the General Manager of the Office Pub where the assault allegedly occurred, (ii) A.B., close friend and neighbor of Ms. S., who was also with her that evening, and finally, (iii) O.L., husband of A.B.’s friend R., who drove them into Toronto to the Office Pub on Saturday, September 24, 2016 and picked them up in the early morning of Sunday September 25. There were also extensive photographs and several other exhibits filed, including an Agreed Statement of Fact.

3Since both the complainant and the accused testified, the case falls to be determined based on the analytical methodology set out in the Supreme Court of Canada's decision in R. v. W.(D.)¹.

Summary of Evidence

Summary of Evidence

4Sanjeev Yogeswaran testified as the General Manager of bar services at the Office Pub, located at 117 John Street in downtown Toronto. It is located on the east side of the street, several buildings north of Adelaide Street and is immediately north of the Town Crier Restaurant. He was the person who hired and monitored the bar’s security personnel. Mr. Yogeswaran was on duty on the night of September 24, 2016. The pub had an extended licence that night that permitted it to remain open until 4:00 am on Sunday, September 25.

5In his evidence, Mr. Yogeswaran identified and correlated the images of the front of the building, the bars on the first and second floors (there was also a third floor bar), the locations of washrooms for men, women and those that were unisex. He also described the areas behind the building, consisting of a lattice-fenced patio for patrons on the first floor, a smaller patio on the second floor, and other details of that area, including a locked gate leading to the alleyway behind the building. Finally, he identified and was able to explain the topography of the alley, how it went north to Nelson Street with angular side parking, but was narrow and could not be accessed by cars from Adelaide Street to the south. He described that area with reference to the Google maps introduced as Exhibit 1 and the 33 photographs that initially comprised Exhibit 2 before it was supplemented by further photos in Exhibit 5.

6There were four security personnel working starting at 9:30 pm on September 24, 2016. They were “Theo”, “Tobias”, Abdul Latif, and the accused, Harris Haidary.² They all wore black shirts and pants, and had a chest identifier as security. They all had radios to communicate.

7Mr. Haidary had been off for several months. It was his second night after returning from time off. There were four security stations at the bar: the front door, the second floor, the third floor, and a fourth security person as a so-called “floater.” One person always stayed at the front door, but otherwise, the security moved around as necessary keeping in contact by radio. Mr. Haidary was the floater that night.

8There were established protocols to deal with common situations. If there was a fight or altercation, the security would go to the area involved to assist and remove unruly patrons from the premises. Similarly, no smoking was permitted except in front of the building on John Street. Finally, if a patron was intoxicated, the clear protocol was first to get them water from the bar; second, find their friends if any to assist; and finally, help the person to get a taxi home or ensure their friends would take the person home.

9Mr. Yogeswaran testified that after 1 o'clock in the morning on September 25, a female patron came to him at the front door and told him that her friend was intoxicated in the back alleyway. Two security staffers, Theo, and Tobias, went out with her to the back alley to assist her friend. They found a young lady sitting on a staircase, very intoxicated and unresponsive, in the area of the Town Crier patio. Mr. Yogeswaran said they helped her to leave that location and take a cab home. He said the woman was found inside the angular gate at the back of the Town Crier patio, immediately south of the back patio of the Office Pub.

10Later on Sunday, September 25, he received information that a woman had called the bar and asked to speak to the manager. Her name was S.S. She told the bartender, Paula, that she had been assaulted the night before. Paula took her name and phone number. Mr. Yogeswaran called her. While S.S. admitted being very intoxicated, she claimed that one of his bouncers had sexually assaulted her, that he had “raped” her, and left her lying drunk in the alleyway.

11Mr. Yogeswaran contacted the security staff asking for information. In response, on September 25 at 7:53 pm, Mr. Haidary sent him a text that was entered as Exhibit 3. The next day, he provided the accused with S.S.’s phone number with her permission. As I will relate below, a call ensued between them.

The Complainant's Evidence

12S.S. and her friends lived somewhere outside Toronto, about an hour's drive away. She testified that she and her friends, A.B., and A.B.’s friend, R.L., had decided to come into the city for a “girls' night out”. S.S. said she had three or four beers while getting ready to go. She said A.B. was with her for part of that time. She had never met R.L..

13R.L.’s husband, O.L., was driving for Uber at the time. The plan was for him to drive them the hour trip into the city, drop them off at a bar, and pick them up when it was time to come home. He would pick up fares while they were at the bar.

14After a Google search they randomly decided to go to the Office Pub, but none of them had been there before. S.S. recalled that when they arrived, they immediately bypassed the line-up to go into the first floor washrooms, but as A.B.’s evidence showed, while that was their first stop, those washrooms were actually in the basement, accessed by a separate front door below the main first floor entrance.

15S.S. remembered first seeing the accused in the hallway outside the washrooms, but she saw him multiple times over the course of the evening, as he moved around and at various times was on the same floors that she was. S.S. was becoming increasingly intoxicated over the course of the evening. She thought Mr. Haidary was about 5'9" or 5'10" tall, with short, slicked back hair, and a small, straight-cut, goatee. She thought he was good-looking and easy to talk to.

16S.S. was flirting with the accused as she continued to drink a further 6 or 7 beers as the evening progressed. In total, she would have consumed 10 or 11 beers from when she started at home, and then over the evening and into the early morning hours at the Pub. She said she spoke to Mr. Haidary for a number of minutes each time he passed on his rounds. She remembered feeling increasingly unsteady and giddy and believed she had started to slur her words. A.B. described their contact as “close” and “flirtatious” and “suggestive”.

17At about 1:30 in the morning, S.S. was sitting on the first floor patio talking to an unidentified male who was smoking a cigarette (the “Smoker”) and standing near her. She saw Mr. Haidary inside the bar through the window of the back door that led to the first floor patio. He looked their way and started to walk towards her. She said he told the Smoker that he could not smoke on the patio and directed him to leave. Then, after they talked for a few minutes, S.S. said the accused told her to follow him into the dimly lit alleyway behind the bar.

18On her evidence, they must have walked north to a location just north of the latticed patio, where cars were parked behind the adjacent buildings. There, in between a red car and a concrete curb, she said he quickly swung her around, pushed her over, and pulled down her leggings. She tried to steady herself on the curb and not fall over, using her bag for support. She said he inserted his penis into her vagina from behind. She remembers asking, “What are you doing to?” and he told her to “shut up”. She also remembers asking “Do you do that to everyone?" He did not respond. She testified he then ejaculated in his hand, and pulled her head down to his penis. She remembered part of his penis and some of his semen going into her mouth. Then, he zipped up his pants, told her to stay there, and left. He walked south, back the way they had come from the gate. It all happened very quickly, in a minute or two.

19S.S. testified that there was a lattice gate at the back of the patio. She had never been there. She did not know where she was and admitted that she was very impaired. Her head was spinning, and she was stumbling and slurring her words. She was starting to feel sick and was nauseous. She walked or stumbled to the neighbouring building to the south, about a 10-foot walk and remembers passing the lattice gate. She found a set of concrete steps and sat on them. She started to throw up as she was sitting on those steps.

20Then S.S. remembered hearing the voice of her friend A.B.. A.B. and R.L. were on the first floor patio sitting in the southeast corner. A.B. had seen S.S. leaving the patio with Mr. Haidary, but after 10 to 15 minutes passed, she was getting nervous because she knew that S.S. had had a lot to drink. She testified that she looked through the lattice towards the south and saw S.S. lying against those stairs. She called to her and she and R.L. went to her. One of them went to get assistance from the security staff. One of them, likely Theo, asked what had happened. R.L. told him about the accused, Mr. Haidary, taking her out through the lattice gate. Evidently, that was when they went to look for Mr. Haidary.

21Sometime between about 1:45 AM and 2:45 AM, R.L. contacted her husband to come back for them and bring the car into the back alleyway. S.S. was largely unresponsive, showing signs of severe intoxication. Then, with help from the bouncers, including Mr. Haidary, who had come back to the alleyway by then, they got her into the car. O.L., R.L.’s husband, drove them home, which was about an hour's trip, and dropped S.S. off first. She slept the entire trip. A.B. helped her into her house and then left.

22The next morning, S.S. told A.B. what had happened. Then she called the bar to report the incident. She wanted them to know what had happened, and was worried about sexually transmitted diseases (“STDs”). Mr. Yogeswaran called her back. She told him she wanted him to know what one of his bouncers had done to her, and to know if he had any STDs. With her permission, the manager gave her number to the accused who called her.

23When the accused called her, they spoke, by phone and text. S.S. said she told him he was “a pig” and asked if he had any STDs. He denied having assaulted her. He told her he had been helping her. She hung up the phone.

24The next day, Tuesday, September 26, she went to St. Michael’s Hospital to be checked out. The attending nurse’s notation in an Emergency Rapid Assessment Nursing Note as reflected in the Agreed Statement of Fact, indicated the following information: (i) that S.S. was intoxicated on the weekend; (ii) that she recalled a sexual assault; (iii) that her assailant was unknown and that she did not know his status; (iv) that she did not want to call police; and (v) that medications Lamotragine and Clonazepan were listed. She was given anti-viral drugs that she had to take for 28 days. Two days later, on September 28, 2016, S.S. gave her statement to the police.

The Accused's Evidence

25Harris Haidary testified in his own defence. He totally denied the accusations made against him. When initially contacted by Mr. Yogeswaran, his manager, the wording of the text that he sent explaining what had happened the night before was as follows:

There was a guy smoking at the back alley by our door. I came back there and told him he can't be smoking back here. Right after he came inside so I locked the door behind him. She had actually left from the back Door at the same time and was super drunk and couldn't find her way back in and had walked to the back [of the Town] Crier where she was later found by her friend who knew she had left from the back and asked us to help her. I went to the back [and] found her with her friends and Theo and Subbour. They call an Uber to the back alleyway where she was and I helped her up and escorted her to the Uber with her friends and they left. So yea we did kick her out the back but only because the Uber driver came to the back alley.³

26In his testimony before me, however, and under intensive cross-examination from the Crown, the accused gave a different version of events. First, he acknowledged that she went out into the back alleyway at 1:30 in the morning, but denied that S.S. was severely intoxicated. He described her as merely “tipsy”, confidently adding, “in my professional opinion”.

27Contrary to his text message, the accused also told me that when he told the Smoker to leave the patio area, both the Smoker and Ms. S. went out through the patio lattice gate. In his trial evidence, all three of them were in the alleyway. He acknowledged the lattice gate would have remained unlocked because it only locks from the inside. However, at that very second he said he received an emergency call regarding a fight in the bar and immediately went to assist. However, he did not go back through the unlocked patio gate and along the first floor to the front door. Instead, as he described it, he went down the stairs from the alleyway immediately next to the lattice gate, through the basement kitchen, and then up to the front door of the building.

28Mr. Haidary denied having been in the back alleyway with Ms. S. for more than a minute, and said he had to leave her and the Smoker there because he was needed for the fight. He said he did not know what happened to them after that until he came down to assist with getting her into the Uber just before it left.

29Despite probing cross-examination, Mr. Haidary would not acknowledge that the text message reflects events happening in chronological order as they appear to in that message. Instead, he stated that the text to Mr. Yogeswaran had not been truthful. He said in that message that he had locked the patio lattice gate behind the Smoker, when he admitted he did not, because to leave the gate unlocked would have breached the protocols, and he did not want the manager to be angry with him, and did not want to lose his job.

Analysis

Analysis

30Where the accused testifies in his defence, as here, the Supreme Court of Canada's decision in R. v. W.(D.) requires that if I believe Mr. Haidary’s evidence that he did not commit the offence, or it at least leaves me in a state of reasonable doubt, then I must acquit. However, even if I do not accept his evidence and it does not leave me in a state of reasonable doubt, Mr. Haidary may only be convicted if I am satisfied on the rest of the evidence that I do accept that Crown counsel has proven the elements of the offence beyond a reasonable doubt. The case law shows that determination must be made on the entirety of the evidence.

31In cases of this kind, there are frequently two competing “versions” of events, but I am not permitted to simply choose between two versions. Rather, whether the elements of the offence are proven to the criminal standard must take account of the entirety of the evidence. Nevertheless, as Doherty J.A. instructs in R. v. (D.) J.J.R.⁴, at para. 53:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.⁵

32Those words require a contextual consideration of the evidence as a whole. Context is particularly important in a case like this, as it provides the tapestry of background information and facts against which, and within which, I must evaluate the credibility and reliability of the evidence of the witnesses, and make my findings of fact.

Credibility of the Accused

33In this case, however, not only were there numerous problems with the way the accused testified and the substance of his evidence, but I simply did not believe Mr. Haidary’s exculpatory evidence. Neither does it leave me in a state of reasonable doubt. I found Mr. Haidary’s evidence to be a stilted amalgam of explanations that could not hang together, either on its own or when subjected to cross-examination.

34In cross-examination, Mr. Haidary avoided answering Crown counsel’s questions. Instead of answering the actual contentious questions being asked, he repeated his scripted message. He became argumentative over very small points. More importantly, in my view he failed to respond in any meaningful or sensible way to the plain contradictions in his previous statements or evidence. I will enumerate the reasons that lead me to reach this conclusion.

35The big evidentiary contradictions are framed by Mr. Haidary’s initial version of events in the text message to Mr. Yogeswaran, as distinct and compared to his very different testimony before me at trial. Mr. Haidary could not reconcile direct contradictions in his trial evidence compared to the text message, a chronology that he provided within 18 hours of the alleged assault. He created that chronology when the events would have been freshest in his mind. However, it was plainly designed to exculpate him from the alleged assault, but at a time when he could not know what others present, including A.B., would later testify that would present a different story.

36Mr. Haidary was unable to explain his differing position on a number of distinct aspects of that text message:

(i) He could not explain why the text says that Ms. S. was “super drunk” immediately before her departure from the main patio. At this trial, “in his professional opinion” she was merely “tipsy.”

(ii) He could not sensibly explain why the text says that the Smoker came in from the alley with the gate locked behind him, but in his trial evidence, the Smoker went out to the alleyway, is not seen again, and the lattice gate remained unlocked. He tried to overcome that credibility problem by admitting he had not told the truth in the text. He must have felt he needed to do that to distance himself from the chronology of events set out in the earlier text message he wrote.

(iii) He claimed in the text to have been entirely absent from the back alley in the early morning of September 25, 2016, but in his trial testimony, he acknowledges that he was present with Ms. S. in the back alley at that time. The revised story was necessary because in A.B.’s evidence, Mr. Haidary is specifically placed and seen going into the alley through the gate with Ms. S.

(iv) He testified that having gone out into the back alley after the Smoker and Ms. S., he testified that he then had to leave both of them there and return to the front of the building after receiving an emergency radio call about a fight. He added an embellishment late in his cross-examination that at one point when in the alley, he told S.S. and the Smoker to go back inside. However, he could provide no coherent or reasonable explanation for why he would leave the patio lattice gate unlocked, but then proceed to the front of the bar through the basement kitchen, rather than back through the lattice gate, and into the door at the back of the first floor of the bar.

(v) Most importantly in my view, there was no mention in the September 25, 2016 text message to Mr. Yogeswaran of any radio call or of any fight. Mr. Yogeswaran had no recollection of a fight that night, though, in fairness, his memory was faint. To my mind this is very important contextually, because that text message was sent the very next day to respond to the General Manager’s inquiries about what had happened, and why it was that Ms. S. had been left alone out in the alley behind the Office Pub when seriously inebriated. The explanation at trial was that he received the call. It is the crystallization event for him leaving Ms. S. alone in the alley, as Ms. A.B. testified. Yet despite that obvious key importance to the chronology Mr. Haidary would have this Court believe that he simply forgot or did not think it important to mention those explanatory facts in his text to Mr. Yogeswaran written only hours after the events occurred. The reason is obvious. It never occurred to him at the time he wrote the text that there would be evidence from Ms. A.B. that would definitively place him in the alley with an inebriated Ms. S., the key fact that underlies the sexual assault allegations.

(vi) Finally, neither was Mr. Haidary able to satisfactorily explain the exchanges that transpired with Ms. A.B. in the alleyway later, just before she and her friends departed in O.L.’ Uber taxi, or the connection of Ms. S.’s departure from the alley to the events that preceded it involving him.

37There were further unexplained contradictions in his evidence. One related to his relationship “of trust” with Mr. Yogeswaran, yet he was unable to articulate any sensible explanation as to why he felt the need to lie to Mr. Yogeswaran about the Smoker’s movement. It would not have seemed to have mattered given that it was not the bar’s policy to throw smokers out. As mentioned further below, another area of contradiction lies in his admissions to Ms. A.B., his texts to Mr. Yogeswaran, and his trial evidence concerning where he was when Ms. S. was in the back alleyway.

38Mr. Haidary was non-responsive when asked directly whether he had been untruthful to Mr. Yogeswaran in the September 25, 2016 text message. He admitted in his testimony that he had been talking with Ms. S., that she had said she loved him and asked for his phone number and that he had said he would give her his number. However, he was unwilling to accept that there was any connection between his offering of his number to Ms. S., and her immediate willingness, in response to his invitation in her evidence, to exit from the main floor patio at that time. He could provide no alternative explanation for her departure with him.

39In summary, overall, I found Mr. Haidary’s testimony to be contradictory and entirely unconvincing. He was consistently proleptic in his responses in cross-examination. Among other meanings, a person who is proleptic anticipates and answers questions before they are asked. Mr. Haidary did a lot of that. He continually attempted to anticipate the questions that he would be asked by Crown counsel, and the consequences of his answers, rather than simply responding forthrightly and directly to the questions he was asked. Moreover, he was speculative and argumentative in response to a number of the questions skillfully asked by Crown counsel that sought to establish chronological order in the September 25, 2016 text message and with respect to any evidence about time frames between events.

40For these reasons, I find that Mr. Haidary’s evidence is neither credible nor reliable. As such, I must now consider whether I am satisfied under the third test in W.(D.) that Crown counsel has proven the elements of the offence beyond a reasonable doubt, based on the other evidence that I accept.

Credibility of the Complainant

41Turning to Ms. S., I accept her evidence as entirely credible. She was an honest and forthright witness. While there were memory gaps in her testimony, she acknowledged when she could not recall things. She acknowledged that three years have passed, that now being a mother of children has caused her to have “a mushy Mommy brain”, and that a lot of detail has now escaped her. She did not embellish her testimony. Her evidence was simple and direct.

42Ms. S. was embarrassed at what had happened, but she acknowledged she was very intoxicated. Her evidence readily acknowledges that she had a lot to drink over the evening, that she was flirting with Mr. Haidary, that she found him very attractive with “very white teeth”, and that she had multiple conversations with him over the course of the evening. That evidence was un-contradicted. In cross-examination, Ms. S. agreed that she was flirting. She was very straightforward about what happened leading up to the incident. She did not minimize her conduct in any way. But she was also offended that a sober member of the bar security staff would take advantage of her state of intoxication as she claimed Mr. Haidary did.

43However, even if I find that Ms. S.’s evidence of what happened to her is credible, and I do, I must be satisfied that it is also reliable. Even though credible, all or part of a witness’s testimony may be unreliable if the witness (i) is unable to recall events accurately, (ii) demonstrates an inability to observe, (iii) or displays favouritism or bias. Alternatively, evidence of the witness may also be unreliable because it is vague, non-specific or the product of a reconstructed memory.

44In this case, the concern over the reliability of Ms. S.’s evidence arises principally from her state of intoxication. She is not unable to observe, nor in my view does she display favouritism or bias. It is her level of intoxication that gives rise to a concern over her ability to recall events accurately. If there had been no evidence in this case other than that of Ms. S., that might have been a more difficult evidential hurdle to overcome. But as I will explain, I find those are not the circumstances present here.

45Defence counsel argued first that Ms. S.’s evidence was not credible, but that regardless of whether her evidence is credible, it was not sufficiently reliable to ground a finding of guilt. He noted that there is no physical evidence of a sexual interaction because the clothes Ms. S. wore that evening were washed before being tested for DNA. While unfortunate, there is no evidence that was deliberate. The complainant plainly and unreservedly conceded that it simply never occurred to her that the clothes she wore that evening could have evidential value. She did not say she wanted to wash the event out of her life. She simply washed the clothes sometime following the event, in the normal course.

46The test of credibility is whether Ms. S. was being truthful, that is, whether she was telling the truth as she recalls it, even if there may have been some gaps in her recollection. Defence counsel argued that Ms. S.’s evidence was not credible, but I reject that contention. I believe and found Ms. S. was being truthful and, as explained below, found it to be extensively supported by the evidence of Ms. A.B.. Nevertheless, I understand that my finding that the complainant was credible is not a proxy for reliability.

47Defence counsel based his argument of unreliability on several inconsistencies in Ms. S.’s evidence, as compared to her preliminary inquiry testimony or her initial statement to the police, given only four days after the event allegedly occurred, but in my view, those inconsistencies were not significant. Instead, I found those relatively minor inconsistencies to more likely have been reflective of Ms. S.’s level of intoxication and the passage of time rather than creating significant problems with her evidence.

48Whether the accused is alleged to have said “Stay here” or instead said “Go over there” after the alleged assault is inconsequential. Neither do I consider it significant that she recalled having told one on the bouncers who was assisting as they helped her into O.L.’s Uber taxi, that she had been raped. Regardless whether she recalls that she did say that, Mr. Yogeswaran did not hear from his staff that a patron had claimed to have been raped. Neither did A.B. hear Ms. S. make that utterance. However, she was in a state of severe intoxication. Her recollection of exactly what was said at that particular time would necessarily be poorer.

49Nevertheless, these points do raise concerns about the reliability of her evidence. As such, in assessing the reliability of Ms. S.’s evidence, I have canvassed the evidence as a whole in search for some confirmatory evidence for the testimony of the complainant. As Hill J. describes it in R. v. N.S., such evidence should be capable of restoring the trier’s faith and belief in the complainant’s account of events, even if it does not directly implicate the accused or confirm the complainant’s evidence in every respect.⁶

Confirmatory Evidence

50In this case, however, I find that the evidence does both in most respects. Whether the actual sexual interaction took place as Ms. S. described it is known only to Ms. S. and Mr. Haidary. No one else was in the alleyway with them, but as I will relate below, there is corroborative evidence for virtually all of Ms. S.’s testimony, apart from the sexual act itself. As I will explain, in my view, that constellation of evidence as a whole does place Mr. Haidary and Ms. S. in the alleyway, as she testified, and I find that the only reasonable inference is that Mr. Haidary did perpetrate a sexual assault on Ms. S. as she described it. I agree with Crown counsel and find that the evidence of Ms. S. and the other Crown’s witnesses, is both credible and reliable. There are three principal grounds that I will review that I find support this conclusion.

51First, the evidence showed that the dynamic between the complainant and the accused, evolved over the course of the night and early morning. It was that dynamic that provided the context within which Mr. Haidary was able to take advantage of Ms. S.’s trust and vulnerability. Ms. S.’s evidence was that she flirted with Mr. Haidary and had multiple conversations with him over the course of the evening. This evidence is uncontradicted. As I have noted above, Ms. S. agreed that she was flirting and was straightforward about what happened leading up to the incident. She did not minimize her conduct.

52Importantly, however, her evidence was corroborated by A.B.’s evidence. Ms. A.B. (i) saw Mr. Haidary on each level of the Office Pub at least once, (ii) saw Ms. S. talking to Mr. Haidary; and (iii) testified that in her view, Ms. S. and Mr. Haidary’s contact was flirtatious and suggestive, and that there was “close contact”.

53This flirtation provides the background context for the commission of the offence. Mr. Haidary took advantage of Ms. S.’s wish that he provide her with his phone number. Against the evidentiary background, including the observations of Ms. A.B., it is not credible that Ms. S. would go into the back alleyway for any reason other than the promise he had just made of providing her with his phone number and his specific direction to “come with me”. This explanation, for why Ms. S. would go into the back alleyway with Mr. Haidary, was corroborated by A.B.. She was in a sober state when she personally observed the interchange between them relating to the phone number. On her uncontradicted testimony, she had not had more than a couple of drinks much earlier in the evening, because it made her feel ill.

54Second, by the time that Ms. S. was on the main floor patio, before entering the back alleyway, she was significantly impaired by alcohol. She was malleable to Mr. Haidary’s direction. As the night progressed, the evidence showed Ms. S.’s increasing signs of impairment, progressing to the point where she was on the main floor patio portion of the pub, talking to Mr. Haidary. The uncontested evidence was that by this point in time, Ms. S. had consumed about 10 beers. She described the physical sensation of her impairment: her head was spinning, her speech was slurred, she was having trouble keeping her balance, and she was starting to experience feelings of nausea. Her state of intoxication was corroborated by Ms. A.B.’s evidence. She testified that when she observed Ms. S. on the main floor patio, she was very intoxicated and slurring her speech.

55Ms. S. wanted Mr. Haidary’s phone number, so it is not surprising that in a vulnerable state of considerable intoxication, a state that Mr. Haidary knew exceeded merely being “tipsy”, she would accept Mr. Haidary’s direction to the area of the back alleyway. Ms. A.B. heard this exchange. Once in the alley, after walking north to the area of the parked red car, Ms. S.’s impaired condition allowed Mr. Haidary to perpetrate a surprise assault on her from behind.

56It was Ms. A.B.’s evidence that Ms. S. was “worse off” in terms of her impairment when she found her on the Town Crier Patio than when she saw her just 10-15 minutes before. As such, in my view, any suggestion that Ms. S. was merely “tipsy” on the main floor patio is significantly undermined by Ms. A.B.’s evidence of her condition. It was her evidence that Ms. S. was nauseous, lying down on a concrete flight of stairs, and only making incomprehensible groaning noises in response to her voice.

57Third, having separated Ms. S. from her friends and used a dimly lit back alleyway to perpetrate a surprise assault, Mr. Haidary was then able to avoid Ms. S.’s friends in his departure from the alleyway, by claiming he went down to the basement and through the kitchen to assist at the claimed fight at the front of the pub. Yet, he never mentioned that important detail the next day in his message to his manager when specifically asked how Ms. S. ended up being left alone in the back alley intoxicated. I do not believe that the radio call ever happened. Mr. Yogeswaran testified he could not recall a fight that evening. Instead, I find that Mr. Haidary took the route he did in order to avoid being seen by the complainant’s friends who were still on the patio, and to thereby conceal that he had assaulted her and left her alone.

58That conclusion is supported by the following evidence of the complainant. Ms. S. testified the back alleyway area was dimly lit and no other persons were there. She said she was led to an area now known to be north of the pub, and assaulted between “a building sticking out and a parked red car”. She recalled that there was a concrete slab, a curb designed to stop the front end of a car being parked, that she used to keep her balance during the assault. She testified that the distance from the area where she was assaulted to the location in the Town Crier Patio, where her friends later found her, was a 10 step walk.

59That evidence and Ms. S.’s description of the back alleyway area where she was assaulted is corroborated by or at least consistent with a number of other pieces of evidence, including:

(i) the orientation of the laneway⁷;

(ii) that it was impossible for cars to be parked in the area beyond the south lattice wall of the Office Pub’s main floor patio;

(iii) the arrangement of cars which must park diagonally in the area north of the Office Pub’s lattice fence, running north to Nelson Street, except for one parking spot immediately in front of the south wall of the alleyway⁸; and

(iv) the presence of the wheel stop in the area directly north of the Office Pub patio.⁹

(v) Mr. Haidary himself admitted that the stated “10 step” distance from the location of the most southerly car parked to the north, to the Town Crier back patio, was correct.

60Furthermore, Ms. S.’s evidence that the lattice gate on the main patio area leading to the alleyway had a lock mechanism on the inside of the gate was also corroborated by Ms. A.B. and Mr. Yogeswaran, and the photographic evidence.¹⁰

61Ms. S.’s testified that following the sexual assault, Mr. Haidary told her to “stay here”, zipped up his pants, and left. Ms. A.B. testified that she and R.L. waited for Ms. S. on the main floor patio after Ms. S. and Mr. Haidary exited the lattice gate. Ms. A.B. said that they remained on the main floor patio and waited for Ms. S. to return for about 10-15 minutes. At that point, Ms. A.B. looked through the south lattice area of the main floor patio and saw Ms. S. lying on the Town Crier Patio. Ms. A.B.’s evidence establishes that Mr. Haidary never returned through the lattice gate during that time period.

62Ms. A.B.’s evidence also has critically important corroborative and inculpatory value with respect to the verbal exchange she had with Mr. Haidary following her discovery of Ms. S. When Ms. R.L. and Mr. Haidary arrived together at the Town Crier Patio, where Ms. S. was found, Ms. A.B. asked Mr. Haidary why he “left Ms. S. back there by herself.” Mr. Haidary answered her by saying, “It wasn’t me I was upstairs all night”, but Ms. A.B. then caught him in his fabrication. She directly confronted him and said, “Really, are you going to say that to me, because I haven’t been drinking”. Ms. A.B. said that Mr. Haidary giggled and laughed in response and walked away.

63It was Ms. S.’s evidence that she did not mention any allegation of sexual assault that evening. She only told Ms. A.B. the following day. Ms. A.B.’s evidence corroborates this entirely. Ms. A.B.’s evidence was that when Ms. S. is being put into the Uber taxi, she said “I love you” to Mr. Haidary. Ms. A.B. testified that in response, Mr. Haidary said, “All we did was hug”.

64Finally, while I recognize that an absence of motive to fabricate or make a false complaint does not and cannot enhance a complainant's credibility,¹¹ I observe that there was no evidence or signs of animus from Ms. S. toward Mr. Haidary.. Ms. S. did not know Mr. Haidary, apart from this one encounter. There is no suggestion or evidence of any collusion between Ms. S. and Ms. A.B.. Ms. S. was very consistent and clear in her evidence. She did not exaggerate or attempt to minimize, and she was forthcoming about the aspects of the night that she had difficulty remembering. There was no suggestion from defence counsel that Ms. S. had any animus toward Mr. Haidary, nor did he suggest that there was a motive to fabricate here.

65My findings that the evidence of the complainant and the other Crown witnesses were credible and reliable is not founded on any finding relative to the presence or absence of malice, animus, or a reason to fabricate. I simply observe, as the Crown argued, that there is no evidence of motive. However, my findings relating to the credibility of the complainant are founded in her testimony and the other extensive corroborating evidence present in this case, and my strong rejection of Mr. Haidary's testimony.

Evidence of A.B.

66Ms. A.B. spoke plainly from her own recollection, she did not exaggerate or attempt to minimize. She was initially hesitant to identify any areas of familiarity in the SOCO photographs that were put to her by the Crown, but those were taken at some time quite later, during the winter or early spring when the patio was not open and there were objects stored on the patio that she did not recognize, obviously because they would not have been present when the incident occurred. To my mind this reflects that Ms. A.B. was being careful, fair, and measured in her evidence.

67Her evidence also provided clarity with respect to the conversations between Ms. S. and Mr. Haidary. She also had a detailed recollection of conversations that she had with Mr. Haidary. Most aspects of these conversations were acknowledged by Mr. Haidary.

68There was no suggestion or evidence of any collusion between Ms. A.B. and Ms. S. Ms. A.B. did not know Mr. Haidary and neither exaggerated nor downplayed any aspects of what she witnessed. For example, Ms. A.B. was candid that Ms. S. said “I love you” to Harris on two occasions. She did not engage in any speculation in making her observations.

69It is important to recognize, however, that critical aspects of Ms. A.B.’s evidence undermined Mr. Haidary’s initial version of events, that is as represented in his text to Mr. Yogeswaran on the date of the offence). Those include:

(i) that Ms. A.B. clearly separated the movement of the “smoker” in time from the subsequent departure of both Ms. S. with Mr. Haidary into the alleyway,

(ii) that her evidence establishes that Ms. S.’s departure into the alleyway was in response to Mr. Haidary’s direction, after he said that he would give Ms. S. his phone number, and

(iii) that her evidence reveals Mr. Haidary’s fabrication in attempting to place himself out of the alleyway at the time that Ms. S. goes into the alleyway.

70Finally, and most importantly, Ms. A.B.’s evidence assists in establishing a pattern of untruths told by Mr. Haidary. Her evidence contradicts his evidence in three material respects:

(i) that he was in other places at the time of the assault, commencing with the initial utterance to Ms. A.B. that he was “upstairs all night”,

(ii) that, (through his text message to Mr. Yogeswaran), he was not in the alleyway because he locked the lattice gate after Ms. S. left, and

(iii) that he was with Ms. S. and the smoker in the alleyway, but had to leave to answer an emergency call in the front of the bar.

Ms. A.B.’s evidence also confirms, contrary to Mr. Haidary’s evidence before me, that just before entering the alleyway, Ms. S. is much more affected by alcohol than being merely “tipsy”.

Conclusion

71To repeat, I have considered all of this in assessing the credibility and the reliability of Ms. S.’s evidence. In my view, the evidence as a whole does confirm the testimony of the complainant, and I am satisfied beyond a reasonable doubt that these events did take place as the complainant described them. The evidence that I do accept does directly implicate the accused and it confirms the complainant’s evidence in virtually every respect.¹²

72In the entirety of the circumstances, I have concluded that these events did happen, just as Ms. S. described them. On the whole of the evidence I am satisfied beyond a reasonable doubt that Mr. Haidary sexually assaulted Ms. S. A conviction will be entered.

Michael G. Quigley, J.

Footnotes

1. 11991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
2. 2There is a reference in the September 25, 2016 text letter to “Theo and Subbour.” It is unknown whether the reference to Subbour in that text is a reference to Abdul Latif or to some other person.
3. 3The exact appearance of the text messages as they were printed from Mr. Haidary’s cellphone is reflected verbatim in Exhibit 3. However, as printed, and reflected in screen shots, the text message had overlaps of text that caused it to be difficult to read. Crown counsel prepared and in cross-examination used a simplified version reflecting the message as it read in its entirety, but without those overlaps. As a result, I have used that version in these reasons, but with some corrected spelling, punctuation, and bracketed additional words to assist in reading the message.
4. 42006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 (C.A.).
5. 5To the same effect, see R. v. Flynn, 2010 ONCA 424, [2010] O.J. No. 2499 (C.A.), at para. 9; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, [2010] O.J. No. 1046 (C.A.), at para. 77; R. v. Stamp, 2007 ABCA 140, [2007] A.J. No. 442 (C.A.), at para. 48; and R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66. See also R. v. Sheppard, 2002 SCC 26, at paras. 46 and 55, and R. v. Dinardo, 2008 SCC 24, at para. 32.
6. 6R. v. N.S. [2001] O.J. No. 3944 (S.C.), at para. 66.
7. 7See Exhibit 2 - JPEG #4634 looking north to Nelson Street and the Exhibit 1(a) Google Map Area.
8. 8Exhibit 2 - JPEG #4634.
9. 9Exhibit 2 - JPEGs: #4613, #4620, #4624, and #4631.
10. 10Exhibit 2 - JPEG #4520.
11. 11R. v. M.S., 2019 ONCA 869.
12. 12R. v. N.S., supra note 7.